Earlier this year we reported the EAT’s decision in Goldwater and ors v Sellafield Ltd on the interpretation of Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993, in the context of a union paying tribunal fees on a successful appellant’s behalf. The rule provides that: “If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying the respondent pay to the appellant an amount no greater than ‘any fee paid by the appellant’ under a notice issued by the Lord Chancellor”. In this case the EAT held that the term “any fee paid by the appellant” meant that no costs order for a reimbursement of fees could be made because if the union had paid the fees, and there was no requirement for their members to indemnify the union in respect of these fees, then the ‘appellant’ had paid nothing at all.

In Ibarz v University of Sheffield, however, another division of the EAT has held that it does in fact have the power to order a respondent to repay the fees paid by a successful appellant even though the fees were paid by the appellant's trade union. The EAT ruled that the decision in Goldwater and ors v Sellafield Ltd was wrong. Firstly, the decision does not read happily with the other provisions in the EAT Rules dealing with the question of payment of fees, where the phrase “payable by an Appellant” and “the Appellant has not paid the fee” can only make any sense practically if the wording of the Rules added to “the Appellant” the words “or on his behalf”. Secondly, no reference had been made in that case to an earlier EAT decision, Mardner v Gardner and Others, where the EAT had held that it is contrary to public policy to permit a Respondent to avoid costs consequences, in a case where it had engaged in unreasonable conduct, because the successful Claimant had not paid the costs incurred but had entered into a policy of insurance so that a costs award would be paid to the insurance company. 

The Mardner case involved costs for ‘unreasonable conduct’, whereas in Ibarz, the costs related to the reimbursement of tribunal fees, albeit that the provisions were ‘similar’. It can only be hoped that the issue comes before the Court of Appeal for final determination as the public policy element raises some interesting points. Does it matter who pays, if the legal requirement to pay the fees to present a claim has been met? If Goldwater is right, does it mean, for example, that if a relative loans a claimant the money to pursue a case and is not asked to pay it back, then the fees cannot be reimbursed if the claim is successful? Also note that in Legge and others v Prestige Homecare Ltd (in administration) and others ET/2401324/14, an ET decided Goldwater is limited in the sense that a claimant can recover the fees, where they have been paid by the union in the form of a loan to be repaid if the claim is successful